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Constitutional challenge to sex work laws ‘succeeded before’ and will succeed again, says advocacy group

The current set of laws prohibit working together as well as safely advertising, puts sex workers at undue risk and potentially violates their charter rights.
Liberal MP Hedy Fry has been a long-time advocate for sex workers. She said that she’s in support of a 2013 court ruling that found the old sex work laws to be unconstitutional and that tackling exploitation and organized crime can be done at the same time as making sex work more of a labour issue than a criminal one. The Hill Times file photograph

A sex worker advocacy group is pushing for reform to laws that endanger sex workers, using a decriminalization approach that some MPs say has their support.

The Canadian Alliance for Sex Work Law Reform launched a constitutional challenge against the current sex work laws earlier this spring, seeking to strike down prohibitions against public communication around sex work, the purchasing of sex, materially benefitting from sex work, and recruiting and advertising for sex work.

Taken together these restrictions, set forth currently under the Protection of Communities and Exploited Persons Act, prevent clear communication and screening of clients, the ability to work together in non-isolated, collective, and indoor workspaces, and the ability to establish working and safety relationships with others, reads the alliance’s March 30 statement.

According to Sandra Ka Hon Chu, director of research and advocacy at the HIV Legal Network, the challenge is starting at the Superior Court of Justice of Ontario, but depending on decisions made, and appeals from either the attorney general or the alliance, it could potentially be heard before the Supreme Court of Canada, where the repeal of criminal provisions would have a national effect. The challenge is being made on the basis of Sections 7, 15(1), 2(b), and 2(d) of the Canadian Charter of Rights and Freedoms, which say that everyone has the right to life, liberty, and security of person and to equal protection and equal benefit of the law without discrimination, freedom of expression, and freedom of association, respectively.

Former NDP MP Libby Davies is wondering why a five-year review mandated in the bill that passed the new set of sex work laws in 2014 still hasn’t been begun. The Hill Times file photograph

Libby Davies, who served as an NDP MP from 1997 to 2015 and a former House leader, said this legal challenge is an indictment of the system overall, in that it’s forced groups and individuals to take up their case in a context where commitments to review this law were not upheld. Enacted through Bill C-36 in 2014, the Protection of Communities and Exploited Persons Act included a provision for a comprehensive review, five years after coming into force. That review deadline passed in 2019.

This review falls to Parliament to initiate, said Ian McLeod, a Justice Department spokesperson. Rachel Rappaport, press secretary for Justice Minister David Lametti (LaSalle-Émard-Verdun, Que.), echoed this statement, noting that parliamentary committees are independent.

House Justice and Human Rights Committee Chair Iqra Khalid (Mississauga-Erin Mills, Ont.) said that it falls on Parliament to establish or designate a committee to review the matter.

The House Ethics Committee is currently reviewing privacy protections for people who appear on porn sites. While it initially wasn’t hearing from sex workers, the committee ultimately did end up receiving testimony from witnesses in that field on April 19.

“So far, your committee hearings have really promoted a set of values that have been extremely damaging for sex workers to watch across the country and across North America,” Jennifer Clamen, national co-ordinator of the Canadian Alliance for Sex Work Law Reform, told the committee. “On Day 1 of these hearings, you all heard from Rape Relief as a means of framing the discussion. They framed it, not surprisingly, as one of exploitation; and that has been really clear to sex workers and really harmful to sex workers across the country.”

According to the Canadian Press, concerns were also raised about whether a trauma-centred approach needed to be taken when dealing with vulnerable witnesses in legislative reviews.

Susan Davis, a member of the BC Coalition of Experiential Communities, said she’s confident that the constitutional challenge being mounted will succeed.

“It succeeded before and the thing about the courts is that they have an obligation to fact and truth. And the judges always scrutinize the evidence properly,” she said, referring to the landmark Canada v. Bedford case.

That 2013 Supreme Court of Canada ruling found that prostitution laws of the time violated the charter rights of sex workers, but the Conservative government of the time’s creation of Bill C-36 in response, according to Kerry Porth, sex work policy consultant at Pivot legal clinic, turned a “huge victory” into a “real blow” to the movement.

Long-time advocate and Liberal MP Hedy Fry (Vancouver Centre, B.C.) said she’s in full support of the Bedford ruling. When asked about the five-year review, she said that Mr. Lametti is in the process of reviewing legislation.

The current laws “reproduced” the harms of the old laws, Ms. Clamen told The Hill Times.

“Essentially in 2014, [it] made sex work for the first time illegal in this country,” she said.

She pointed to the fact that purchasing sexual services anywhere is now illegal, as is advertising and earning a material benefit, meaning that everything sex workers do is “in the context of criminality.” As a result, sex workers can lose their housing, their jobs, their children and they don’t have safe access to health, legal, and social services, Ms. Clamen said.

Daphne Barile, co-ordinator at ASTTeQ, a trans advocacy group, noted that as a result of indirect criminalization, such as through the fact that clients are still criminalized, police presence remains in sex work. She said this dangerously pushes sex workers into isolated areas away from police, while also stopping them from being able to share information about bad dates and develop safe working conditions or watch out for each other—as the law prohibits working together.

Action Canada for Sexual Health and Rights government relations director Sarah Kennell says sex work and trafficking shouldn’t be conflated. Photograph courtesy of Sarah Kennell

“And every time I enter into a transaction with my client, I conspire to help him break the law,” Mona Forya, consultant at Answers Society, a sex workers advocacy group, said. She also emphasized the danger of being forced to work alone.

“A friend of mine has been missing for a year and a half. A woman here in Edmonton was killed. She was working alone in a hotel room, because you can’t work with two people.”

Sophia Ciavarella, operations manager at Peers Victoria Resources Society, said it also adds a layer of fear in going to the police for help.

“Sex workers can’t access spaces to work in that are safely organized for their own employment or labour protection,” she said.

Hit particularly hard by this system are migrant sex workers, said Jamie Liew, a law professor at University of Ottawa and immigration lawyer. The police interactions spurred on by these laws mean that non-domestic sex workers can be identified for removal or deportation, with criminal charges potentially rendering them inadmissible to Canada.

“It’s basically using the john as a proxy to get to the migrant sex worker,” Prof. Liew said.

“There’s a lot of ignorance out there … and a lot of people think that because you’re a sex worker, that you’re a disposable person,” Velvet Steele, a fetish service provider, said.

Decriminalization and destigmatization go hand in hand

While Ms. Fry does acknowledge sex trafficking exists, she emphasized that so do willing workers. More importantly, she said, tackling exploitation and organized crime can be done at the same time as making sex work more of a labour issue than a criminal one.

That is to say, according to Sarah Kennell, director of government relations at Action Canada for Sexual Health and Rights, that the two activities shouldn’t be conflated. She noted that “existing provisions within the Criminal Code that address trafficking are relevant and should be upheld, but when we start using them to target sex workers, there’s a problem.”

Ultimately turning it into a labour issue requires a complete removal of all prostitution-related charges in the Criminal Code, Ms. Davis said.

After that, the next step is to look at labour, youth protection, and public health frameworks, Ms. Clamen said.

Ms. Davies said it could also be worthwhile to improve the reporting system, so that sex workers aren’t afraid to go through the police due to stigma or ignorance—essentially creating a “proper process.”

NDP MP Randall Garrison is in favour of decriminalizing sex work as well as for providing capacity funding to sex worker community organizations. The Hill Times file photograph

NDP MP Randall Garrison (Esquimalt-Saanich-Sooke, B.C.), who is in support of decriminalization, said that capacity funding for sex-worker organizations would make sense, given that the advocacy groups are best suited to know what’s needed in their communities. He also said there should be good alternatives to sex work available for everybody in terms of good-paying jobs.

And, Ms. Porth stressed, decriminalization would also lead to less stigma around the work in general.

“The stigma around sex work is what promotes violence against sex workers and exploitation,” she said. “Decriminalize sex work so that it’s seen as a job like any other job and sex workers are workers like other workers”

Listening to sex workers is also crucial, said Kate Sinclaire, an adult filmmaker.

“We are the ones dying, we are the ones being targeted. So we absolutely need that voice at the table and to be listened to,” she said.

Available social supports should also be made barrier free, like with guaranteed livable income, or access to housing that doesn’t require declaring sex work activity on federal forms, she said.

Sex work also isn’t what it appears to be on the surface. Ms. Fry offered an example of a husband and wife pair. The wife developed a disease that prevented her from having sex with her husband but she still wanted him to be able to get sexual release. To that end they interviewed and enlisted a sex worker for that purpose, treating it like a business transaction, Ms. Fry explained.

“The wife knew where he was, who he was with, the woman was doing her job, she was not a mistress who would want to take him away from his wife and they were very happy,” she said.

In Ms. Ciavarella’s view, sex work also isn’t what society typically sees it as.

“Sex work is treated as a staple of vulnerability that must be discouraged or deterred … [in reality] sex work is much more an expression of agency than one of disempowerment.”

The Hill Times

Constitutional challenge to sex work laws ‘succeeded before’ and will succeed again, says advocacy group